COMMONWEALTH OF PENNSYLVANIA STATE BOARD OF EDUCATION RECEIVED FEB 2 7 2020 PA, STATE BOS OF EDUCATION INRE: APPLICATION OF ERIE COUNTY SEEKING TO ESTABLISH A. COMMUNITY COLLEGE Docket No. 2019-001 MOTION FOR RECONSIDERATION OF FEBRUARY 11, 2020 ORDER AND NOW, comes Northern Pennsylvania Regional College by and through its counsel, ‘Tucker Arensberg, P.C. and hereby files the within Motion for Reconsideration of the Order of February 11, 2020 and in support thereof avers as follows: 1 RB .CTUAL HISTORY PROCEDUR: AND. VAI 1, On November 14, 2019, the State Board of Education voted to hold a hearing on the application of Erie County as amended. 2, Subsequently, the State Board of Education appointed an Ad Hoc Committee on the Erie County Community College Plan Hearing (hereinafter “Committee"). 3. On January 27, 2020, the Committee held a meeting,! 4, Subsequent to the January 27, 2020 Committee meeting, the Committee issued an Order. 5. Atrue and correct copy of the January 28, 2020 Order is attached hereto as Exhibit “AD 6. The January 28, 2020 Order was not e-mailed to the parties until January 31, 2020. 1 Upon information and belief the only notice of this meeting was a posting on the State Board of Education website Which notice failed to comply with 65 P.S. § 701, ot seq, "TADMS:5281456c1 O022-1884687, The January 28, 2020 Order required the parties to file Pre-Hearing Statements by February 7, 2020. 8. The Pre-Hearing Statements were required to include, inter alia, the following: a, A summary of legal and factual issues and conclusions; b. Names of all witnesses, and shall expressly identify proposed experts; ©. Curricula Vitae of expert witnesses; d. Copies of expert reports; ¢. __ Lists of exhibits (but not exhibits themselves); £. Stipulations as to fact, admissibility, and authenticit 9, No mention was made in the January 27, 2020 Order that expert reports were to be made a part of the record? 10. On February 11, 2020, the Committee held another meeting. * 11. Following said meeting, the Committee issued an Order (hereinafter “February Order”). 12. A true and comect copy of the February Order is attached hereto as Exhibit “B”, 13. The Order provided that the parties should be permitted to present witnesses during, the following relevant timeframe: “(b) the Northern Pennsylvania Regional College (“NPRC”) and Senator Joseph Scarnati, II, shall present their ease between 1:00 PM to 3:00 PM, and may make an opening statement within that timeframe.” As the same meeting, the Commitze specifically refused to answer what would be considered a part ofthe record {for the purpose ofthe heating. When this inquiry was made by undersigned counsel, together with inquiries regarding ‘a number of other procedural issues, the Committee chair directed Board Counsel not to answer any questions fom the publi. pon information and belief the only notice ofthis meeting was a posting on the State Board of Education website which notice filed to comply with 65 P.S. § 701, et seq, No mention was mpade ofthe February 11,2020 Committee meeting in the January 27, 2020 Orde. FADMS:5281456-1 034822-18846414, Relevantly, the February Order also provided as follows: “that the Applicant and Intervenor Empower Erie, and Intervenors NPRC and Senator Joseph Scamati, III, respectively, shall designate a single counsel to conduct examinations, make motions or objections in the hearing.” 15. The February Order also provided: “that the Board will not entertain subpoenes.” 16, Lastly, the February Order provided: “that the initial record shall consist of the Erie County Community College Plan and amendments thereto, the pre-hearing filings, including timely submitted expert reports submitted by February 7, 2020, the docket, and Orders of the Board and its committees relating to this matter.” 17, NPRC respectfully requests this Board to reconsider the above-referenced procedural rules governing the hearing to be held on March 18, 2020. th STANDARD FOR MOTION FOR RECONSIDERATION 18. A Motion for Reconsideration must be filed within thirty (30) days of the challenged Order, 42 Pa, C.S.A. § 3505. 19, The decision to grant or deny a request for reconsideration is a matter of administrative discretion and as such will be reversed upon the finding of an abuse of discretion. ‘Muehleisen v. Commonwealth of Pennsylvania, State Civil Service Commission, 66 Pa, Cmwith. 95, 99, 443 A.2d 867 (Pa, Cmwith. 1982). 20, An abuse of discretion occurs when the judgment is manifestly unreasonable or where the law is not applied or the record shows that the action is a result of partiality, preju bias, or ill will. ‘TADMS:S281486-1 02482218840421. In addition, an ageney has the ability to grant reconsideration of appropriate circumstances where the interest of justice require. See Vista Intern, Hotel v. WCAB, 560 Pa. 12, 20, 742 A.2d 649 (Pa, 1999), 22. Aboard’s power is not limitless, but must be exercised in a manner that is generally consistent with the policies and provisions of the governing statute and regulations. See, e.g, Id. I. THE SEVERE LIMITATION ON TIME FOR THE PRESENTATION OF EVIDENCE IS AN ABUSE OF DISCRETION 23. Itis respectfully submitted that the determinations in the February Order referenced above constitute an abuse of discretion such that reconsideration is appropriate. 24, The time limitations put in place for the presentation of evidence by NPRC through the February Order violate due process protections afforded by the Pennsylvania and United States, Constitutions. 25. Due process principles apply to administrative proceedings and require an opportunity, among other things, to hear the evidence adduced by the opposing party, ctoss- examine witnesses, introduce evidence on one’s own behalf and present argument. Kowenhoven v. County of Allegheny, 587 Pa, $45, 901 A.2d 1003 (2006). 26. There must be an opportunity fo present one’s cause in a proceeding appropriate to the character of the particular case with an adjudication of the same nature as is present in other similar cases. Id. 27. The constitutional right of the Pennsylvania Constitution is fully applicable in proceedings before administrative tribunals, Millereek Manor v. Department of Public Welfare, 796 A.2d 1020, 1028 (Pa. Cmwlth, 2002). See also Lawson v. Pennsylvania DPW, 744 A.2d 804 (Pa. Cmwith. 2000), Further, no adjudication of a Commonwealth agency shall be valid as to any "TADMS:5281456-1 034822. 188464party unless he shall have been afforded a reasonable notice of a hearing and an opportunity to be fully heard. 2 Pa, C.S. § 504, 28. Where factual issues are in dispute, an evidentiary hearing has been held to be necessary. 29, The preclusion of a party participant to present evidence on the issues raised not only denies the participant a meaningful opportunity to be heard, but also precludes an appellate court from conducting meaningful appellate review. Id. at 1030. 30. The record involved in this case as referenced in the February 11, 2020 Order consists of thousands of pages of documents that have been produced by the applicant and the various state agencies over approximately two and a half years. 31, Nevertheless, the Board has severely limited the participation of the Intervenor, NPRC, to only two hours in time which must be shared with another Intervenor, Senator Searnati. Given the history of these proceedings, such limited participation is so abbreviated as to constitute a denial of due process. 32. Therefore, the Board should reconsider the time limitations placed upon NPRC and provide for an extended period of evidentiary presentation consistent with the requirements of due process. IV. THE REQUIREMENT THAT NPRC AND SENATOR SCARNATI JOINTLY DESIGNATE A SINGLE COUNSEL TO CONDUCT EXAMINATIONS, MAKE AND OBJECTIONS AT THE HEARING 1S AN ABUSE OF ON 33. The limitation on participation of counsel by NPRC at the upcoming hearing is an abuse of diseretion. 34. 2 Pa. CS.A. § 502 guarantees the right of any party to be represented before a ‘Commonwealth agency by counsel. TADMS's281486-1 o34s22-18846435. Proceedings conducted by the Administrative Agency that result in an adjudication that do not afford parties their statutory right to representation are subject to a remand. See, ¢.g., Kusnir v. Leach, 64 Pa, Commw. 65, 439 A.2d 223 (Pa. Cmwith. 1982). 36. The February Order not only seems to limit participation by counsel in the conduct of direct examination and objections, but also would presumably limit counsel for the purpose of cross-examination of witnesses, 37. In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses. Soja v. Pennsylvania State Police, $00 Pa, 188, 455 A.2d 613 (Pa, Cmwith. 1982) (citing Goldberg v. Kelly, 397 U.S. 254) (1970). 38, In addition, 42 Pa. C.S. § 2501(a) provides that in all civil matters before any tribunal, every litigant shall have a right to be heard by himself and his counsel or by either of them; See also, Nester v. George, 354 Pa. 19, 46 A.2d 469 (Pa. Cmwlth. 1946). 39. Therefore, the limitations on representation by counsel of NPRC at the ‘Administrative Hearing is an abuse of discretion which should be reconsidered. V. THE ADMISSION OF EXPERT REPORTS INTO THE RECORD PRIOR TO ‘ARING IS AN ABUSE OF DISCRETK THE HEARING IS AN ABUSE OF DISCRETION 40. The admission of the expert reports of Erie County as evidence prior to the hearing is an abuse of discretion, 41, __Itis a central tenant of any legal case that the proponent of the evidence bears the burden of proving it at the hearing. See In re: Johnson, 509 Pa. 347, 502.A.2d 142, 146 (Pa. 1985). 42. A proponent of expert evidence bears the burden of establishing all elements for a submission. Grady v. Frito-Lay, Inc., 576 Pa. $46, 839 A.2d 1038, 1045 (Pa. 2003). “TADMS5281456¢1 034822-18646443, Expert testimony must be given by a witness who is qualified as an expert by knowledge, skill, experience, training or education. Id. 44. Whether a witness is qualified to render opinions and whether the testimony passes the relevant tests are two distinet inquiries that must be raised and developed separately by the parties and ruled upon by the tribunal, [d., 839 A.2d at 1046, 45, The February Order seemingly admits expert reports of Erie County into evidence without the requirement that Erie County satisfy the requirements for admission of evidence and, in particular, the requirements for admission of expert testimony and reports. 46, Therefore, the admission of Erie County's expert teports into the record should be reconsidered. WHEREFORE, Northern Pennsylvania Regional College respectfully requests the State Board of Education reconsider the Order of February 11, 2020 and re-establish the rules for the hearing to be held on March 18, 2020 consistent with due process and the General Rules of Administrative Practice and Procedure. Respectfully submitted, ‘TUCKER ARENSBERG, P.C. () (a AG seaeaeesnsces Kevin J/ all, PA ID No. 311826 2 Lemoyne Drive, Suite 200 Lemoyne, PA 17043 kKkhall@uckerlaw.com (717) 234-4121 Atorneys for Intervenor, Northern Pennsylvania Regional College Dated: February 27, 2020 “TADMS:$281456-1 054822-188464EXHIBIT “A”COMMONWEALTH OF PENNSYLVANIA STATE BOARD OF EDUCATION INRe: ‘March 18, 2020, Public Hearing on the: ‘Docket No. 2019-001 Erie County Community College Plan ORDER AND NOW, this 27 day of January, 2020, the Ad Hoe Committee on the Erie County Community College Plan Hearing (Committee) establishes thatthe State Board of Education's ‘Goard) Hearing to consider the Plan to Establish the Erie County Community College will be scheduled for March 18, 2020, and that the time of 10:00 a.m, ~ 4:00 pam. will be reserved for presentation of evidence. ‘The Committee direets each party to file, and serve upon all other parties and the Board, Pre-Heating Statements no later than 4:00 p.m. on February 7, 2020. The Pre-Hearing Statements shall be substantively limited to 7 pages each. The filings shall include the following: ‘A summary of legal and factual issues and conclusions ‘Names of all witnesses, and shall expressly identify proposed experts Curricula Vitae of expert witnesses Copies of expert reports Lists of exhibits (but not exhibits themselves) Stipulations as to fact, admissibility, and authenticity ‘As required by 1 Pa, Code § 35.116, parties are expected to confer to stipulate to the fullest extent possible mresose All documentary evidence intended to be presented at the hearing on March 18, 2020, shall bbe pre-marked and submitted to the Board by Friday, March 6, 2020, at 4:00 p.m, ‘The Pre-Hearing Statements and all other filings shall be filed with Stephanie Jones, Docket Clerk, Pennsylvania State Board of Education, 1* Floor, 333 Market Street, Harrisburg, PA 17126, with a copy to other parties/counsel. All filings shall be accompanied by the appropriate proofs of service as required by 1 Pa, Code § 33.31-33.37. Ifyou have any questions regarding the filing of your Pre-Hearing Statements, please contact the Docket Clerk at (717) 787-3787, and be prepared to reference the Docket Number on this Order. Executive DirectorFor the State Board of Education: Brie County: Empower Ere: ‘The Northern Pennsylvania Regional College: Senator Joseph Seamati, Doeket Clerk: Mailing Date: ‘Thomas P. Howell, Esquire Deputy General Counsel State Board of Education Office of General Counsel 333 Market Street, 17" Floor Harrisburg, PA 17126 Michael W. Winfield, Esquire Post & Schell, P.C. 17 North Second Street | 12" Floor Harrisburg, PA 17101 James J. Kutz, Esquire Post & Schell, P.C. 17 North Second Street | 12 Floor Heerisburg, PA 17101 David C. Hittinger, J, Esq. Eckert Seamans Cherin & Mellott, LLC 213 Market Street | 8° Floor Harrisburg, PA 17101 Kevin L. Hall, Esq. Tucker | Arensberg Attorneys 2. Lemoyne Drive | Suite 200 Lemoyne, PA 17043 ‘Adam L, Santucci NeNees Wallace & Nurick LLC 100 Pine Street | PO Box 1166 Harrisburg, PA 17101 Stephanie L. Jones Pennsylvania State Board of Education 333 Market Street | 1" Floor Harrisburg, PA 17126 January 28, 2020EXHIBIT “B”INRe: COMMONWEALTH OF PENNSYLVANIA STATE BOARD OF EDUCATION March 18, 2020, Public Hearing on the t Docket No, 2019-001 Erie County Community College Plan ORDER AND NOW, this 11" day of February, 2020, the Ad Hoc Committee on the Erie County Community College Plan Hearing (Committee) adopts the following procedural rules governing the heating on the Erie County Community College Plan to be held on March 18, 2020 and Orders as follows: 1) That the parties shall submit any stipulations to the office of the Executive Director of the State Board of Education (Board) by 4:00 p.m, on March 13, 2020, 2) That the parties shall be permitted to present witnesses during the following timeframe: a, Brie County and Empower Brie shall present their case between 10:00 a.m. ~ 12:00 p.m., and may make an opening statement within that timeframe. . The Northern Pennsylvania Regional College (NPRC) and Senator Joseph Scarnati, If, shall present their case between 1:00 p.m. — 3:00 p.m., and may make an opening statement within that timeframe, e, Cross examination will be conducted between 3:00 p.m. ~ 4:00 p.m. (NPRC and Senator Joseph Scamnati, THI, may cross-examine from 3:00 p.m, p.m Brie County and Empower Brie may cross-examine from 3:30 p.m. — 4:00 p.m.). 4. NPRC and Senator Joseph Scarnati, IT, may make a closing statement between 4:00 pam. and 4:05 p.m.; Erie County and Empower Erie may make 2 closing statement between 4:05 p.m, and 4:10 pm. e. Board members may ask questions of witnesses after the presentation of evidence, with each Board member being allotted 3 minutes in the ageregate. Members ‘may cede their time to their colleagues. 3) That the Applicant and Intervenor Empower Erie, and Intervenors NPRC and Senator Joseph Scamati, III, respectively, shall designate a single counsel to conduct ‘examinations, make motions or objections in the hearing, 4) That Board members may ask questions of witnesses relating to legal argument only within the timeframe allotted to them for the questioning of witnesses.5) That the pasties will not submit proposed findings or conclusions, as this proceeding is, not conducted before a presiding officer. 6) That the Board will not entertain subpoenas, 7) That the initial record shall consist of the Frie County Community College Plan and amendments thereto, the pre-hearing filings, including timely-submitted expert reports submitted by February 7, 2020, the docket, and Orders of the Board and its Committees relating to this matter. Stipulations referenced in the above item #1 shall be filed with Stephanie Jones, Docket Cleric, Pennsylvania State Board of Education, 1" Floor, 333 Market Street, Hacrisburg, PA 17126. All filings shall be accompanied by the appropriate proofs of service as required by 1 Pa, Code § 33.31-33.37. Ifyou have any questions regarding filings, please contact the Docket ‘Clerk at (717) 787-3787, and be prepared to reference the Docket Number on this Order. Karen Molchanow Executive DirectorFor the State Board of Education: Erie County: Empower Erie: ‘The Northern Pennsylvania Regional College: Senator Joseph Scarnati, I: Docket Clerk: Mailing Date: ‘Thomas P. Howell, Esquire Deputy General Counsel State Board of Education Office of General Counsel 333 Market Street, 17° Floor Harrisburg, PA 17126 Michael W. Winfield, Esquire. Post & Schell, P.C. 17 North Second Street | 12" Floor Harrisburg, PA 17101 James J. Kutz, Esquire Post & Schell, P.C. 17 North Second Street | 12" Floor Harrisburg, PA 17101 David C. Hittinger, J, Esq. Eckert Scamans Cherin & Mellott, LLC 213 Market Street | 8° Floor Harrisburg, PA 17101 Kevin L. Halll, Bsq. Tucker | Arensberg Attorneys 2 Lemoyne Drive | Suite 200 Lemoyne, PA 17043 Adam L. Santueci. NeNees Wallace & Nurick LLC 100 Pine Street | PO Box 1166 Harrisburg, PA 17101 Stephanie L. Jones Pennsylvania State Board of Education 333 Market Street | 1* Floor Harrisburg, PA 17126 February 11, 2020I, Kevin L. Hall, Esquire, of the law firm of Tucker Arensberg, P.C,, hereby certify that 1 served a true and correct copy of the foregoing document this date by depositing a copy of the same in the possession of the United States mail, first-class, postage prepaid, addressed as follows: James J. Kutz, Esquire Michael W. Winfield, Esquire Post & Schell, P.C. 17 North Second Street, 12 Floor Harrisburg, PA 17101 {jkuta@postschell.com; mwinfield@postschell.com “Attorneys for County of Erie Adam L, Santucci, Esquire McNees, Wallace & Nurick, LLC 100 Pine Street, P.O. Box 1166 Harvisburg, PA 17108 asantueci@meneeslaw.com Attorneys for Intervenor Senator Joseph Scarnati, HI Mark Stewart, Esquire Eckert Seamans Cherin & Mellott, LLC 213 Market Street, 8" Floor Harrisburg, PA 17101 mstewart@eckertseamans.com Attorneys for intervenor Empower Erie ‘Thomas P. Howell, Deputy General Counsel Governor's Office of General Counsel ‘Commonwealth of Pennsylvania 333 Market Street, 17" Floor Harrisburg, PA 17101 thowell@pa.gov Attorneys for State Board of Education TUCKER ARENSBERG, P.C. 2 Kevin He LD. #311826 2 Lemoyne Drive, Suite 200 Lemoyne, PA 17043 (117) 234-4121 Khali@tuekerlaw.com Dated: February 27, 2020 “TADMS:5281456-1 034822-182464